Karnataka High Court
Sri H D Ramesh vs The Commissioner on 22 November, 2016
Author: Vineet Kothari
Bench: Vineet Kothari
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 22ND DAY OF NOVEMBER, 2016
BEFORE
THE HON'BLE DR. JUSTICE VINEET KOTHARI
WRIT PETITION No.44508/2015 (LB-BBMP)
BETWEEN
SRI.H.D.RAMESH
S/O DALAVAYIGOWDA
AGED ABOUT 43 YEARS
R/A NO.27, SRINIDHI TRADERS
GANAPATI NAGARA
PEENYA 3RD STAGE
BENGALURU - 560 058.
...PETITIONER
(By SMT.M.V.THANUJA, FOR
SRI.M.ERAPPA REDDY, ADVOCATE)
AND
1. THE COMMISSIONER
BRUHAT BENGALURU MAHANAGARA PALIKE
HUDSON CIRCLE
BENGALURU - 560 002.
2. ASSISTANT EXECUTIVE ENGINEER
BRUHAT BENGALURU MAHANAGARA PALIKE
PEENYA INDUSTRIAL AREA
WARD NO.41, 1ST 'A' CROSS ROAD
MEI COLONY, LAGGERE
BENGALURU - 560 058.
...RESPONDENTS
(BY SRI. V.SREENIDHI, ADVOCATE)
Order dated: 22.11.2016 in WP No.44508/2015
Mr.H.D.Ramesh Vs The
Commissioner, BBMP and another
2/13
THIS WRIT PETITION IS FILED UNDER ARTICLES 226
AND 227 OF THE CONSTITUTION OF INDIA PRAYING TO
QUASH THE ORDER PASSED BY THE KARNATAKA
APPELLATE TRUBUNAL, BENGALURU IN APPEAL
NO.759/2013 ON 17.07.2015 VIDE ANNEUXRE-A AND ALSO
TO QUASH THE PRELIMINARY ORDER DATED 10.07.2013
VIDE ANNEXURE-K AND CONFIRMATION ORDER DATED
22.07.2013 PASSED BY THE R-2 VIDE ANNEXURE-L AS
ILLEGAL AND WITHOUT JURISDICTION.
THIS WRIT PETITION COMING ON FOR HEARING,
THIS DAY, THE COURT MADE THE FOLLOWING:
ORDER
Smt.M.V.Thanuja for Mr.M.Erappa Reddy, Adv. for petitioner; Mr.V.Sreenidhi, AGA for respondents.
The petitioner, Mr.H.D.Ramesh, has filed this writ petition in this Court on 9.10.2015 with the following prayers:
"a. Issue a writ of certiorari or such other writ or direction and to quash the order passed by the Karnataka Appellate Tribunal, Bengaluru in Appeal No.759/2013 on 17.07.2015 as per Annexure-A and also to quash the preliminary order bearing No.SA.KA.HA/THA.VA/P/K1.VU.V/PO/07/ 13-14 dated 10.07.2013 as per Annexure-K and confirmation order bearing Order dated: 22.11.2016 in WP No.44508/2015 Mr.H.D.Ramesh Vs The Commissioner, BBMP and another 3/13 No.SA.KA.HA/THA.VA/P/KI.VU.V/PO/07/13
-14 dated 22.07.2013 passed by the respondent No.2 Annexure-L as illegal and without jurisdiction.
b. To award costs of this petition. c. To pass such other order or orders as this Hon'ble Court deems fit to grant in the circumstances of the case in the interest of justice and equity."
2. The construction sought to be raised by the present petitioner on the site No.8, Khatha No.385, Ward No.25, Ganagadeshwara Layout, Ganapathi Nagara, Laggere Village, Bengaluru-560 058, seems to have been raised without any sanctioned plan whatever by the respondent-BBMP. Initially, a provisional order under Section 321 of the Karnataka Municipal Corporation Act, 1976 came to be passed against him showing 100% deviations on the ground, first and second floor in the order dated 10.7.2013, which is quoted below for ready reference;
Order dated: 22.11.2016 in WP No.44508/2015 Mr.H.D.Ramesh Vs The Commissioner, BBMP and another 4/13 " Provisional order passed under Section 321(1) & (2) of the Karnataka Municipal Corporations Act, 1976.
Sri H.D.Ramesh is constructing a building in No.8, Ganagadeshwara Layout, (Ganapati nagara) Bengaluru, Ward 41. On 5-07-2013 the said building was inspected. The building is constructed without obtaining any plan. In this regard one Smt.Bhagyamma also filed a complaint by stating that the said building is constructed by encroaching upon her property.
The details of un-authorized construction is as hereunder:
SL Description As per As Per actual Total area % of Deviated Remarks NO Sanction deviated Plan 1 Ground Floor - 9.85x11.8=116.23sqm 116.23sqm 100 - 2 First Floor - 9.85x11.8=116.23sqm 116.23sqm 100 - 3 Second Floor - 9.85x11.8=116.23sqm 116.23sqm 100 -
Therefore you as owner of the said building has constructed the building un-authorizedly and you have violated building bye-laws and rules of The Karnataka Municipal Corporations Act, 1976 and hence I pass the following order;
Order dated: 22.11.2016 in WP No.44508/2015 Mr.H.D.Ramesh Vs The Commissioner, BBMP and another 5/13 PROVISIONAL ORDER In view of the above, building is constructed unauthorizedly in violation of provisions of Karnataka Municipal Corporations Act, 1976, rules, regulations and bye-laws and hence by exercising the power under the said Act, you are directed to demolish the building and to bring it in accordance with the rules and regulations.
Apart from that you are directed to show cause within 7 days why this provisional order cannot be modified by conforming it, if you fail to reply or if your reply is not satisfactory and in such a case this order will be conformed and same will be binding on you.
Junior Engineer Ward No.41.
Delegated Officer ASSISTANT EXECUTIVE ENGINEER Peenya Industrial Area, Sub-Division Bruhat Bengaluru Mahanagara Palike"
3. Thereafter, the said order came to be confirmed by the Assistant Executive Engineer, BBMP under Order dated: 22.11.2016 in WP No.44508/2015 Mr.H.D.Ramesh Vs The Commissioner, BBMP and another 6/13 Section 321(3) of the Act on 22.7.2013. The petitioner did not raise any demur or objection before the said authority or claimed any sort of approval or sanction from any competent person or body under the relevant law for such construction. The said order Annexure-L dated 22.7.2013 under Section 321(3) of the Act is also quoted below for ready reference:
" Confirmation order passed under Section 321(3), of the Karnataka Municipal Corporations Act, 1976.
H.D.Ramesh, owner of No.8, Ganagadeshwara Layout (Ganapati Nagara) Bengaluru, Ward 41, without obtaining any plan is constructing a building for own use consisting of ground, I and II floors. As the owner without obtaining any sanctioned plan by violating the building bye laws is constructing the building and hence a provisional order bearing No.07/2013-14 dated 10.07.2013 under Section 321(1) and (2) Karnataka Municipal Corporations Act was passed by directing him to remove the violated portion within 7 days from that date to comply the said order.
Order dated: 22.11.2016 in WP No.44508/2015 Mr.H.D.Ramesh Vs The Commissioner, BBMP and another 7/13 On 15.07.2013 the owner of the building filed detailed objections to said provisional order. The said cause is not accordance with the bye laws of the Karnataka Municipal Corporations Act and hence the cause shown by him cannot be accepted. He has not complied the provisional order passed under Section 321(1) and (2) of the said Act and hence the said provisional order is confirmed as here under;
CONFIRMATION ORDER In view of the above, I am of the opinion, the owner of the property bearing No.8 Gaghadareswar Layout (Ganapathi Nagara) Bengaluru, by violating Karnataka Municipal Corporations Act, regulations and bye laws constructed unauthorized construction. Therefore, it is ordered to remove the unauthorized construction which is in violation of the Karnataka Municipal Corporations Act, regulations and bye laws and hence the provisional order dated 10.07.2013 is hereby confirmed and directed to serve this order by post.
Order dated: 22.11.2016 in WP No.44508/2015 Mr.H.D.Ramesh Vs The Commissioner, BBMP and another 8/13 You are hereby called upon to correct the violated portion immediately, failing which the same will be corrected and the cost will be recovered as tax."
ASSISTANT EXECUTIVE ENGINEER Peenya Industrial Area, Sub-Division Bruhat Bengaluru Mahanagara Palike"
4. The petitioner took the matter further before the Karnataka Appellate Tribunal, Bengaluru, where in Appeal No.759/2013 in the case of Mr.H.D.Rameh, Vs. The Commissioner, BBMP and another also came to be dismissed with the following observations:
"9. On perusal of the records produced by the respondents, it is clear that the appellant is the owner of the property as he purchased the property, khatha is in his name and he is in possession by paying taxes. He is constructing a building. As he has not disclosed who sanctioned the plan and hence the same cannot be considered as the name and designation of the officer is not there on the plan. In the provisional order and confirmation order it is stated Order dated: 22.11.2016 in WP No.44508/2015 Mr.H.D.Ramesh Vs The Commissioner, BBMP and another 9/13 that without obtaining plan and by encroaching upon the neighbourers land the building is constructed. The appellant has not shown any cause to it and hence the building constructed by the appellant is considered as un-authorized construction and hence the order passed by the 2nd respondent is in accordance with law and hence this Tribunal will not interfere with the same. The appellant failed to prove his case and hence points No.1 and 2 are answered negatively."
5. Aggrieved by the same, the petitioner preferred the aforesaid writ petition in which the Co-ordinate Bench of this Court granted ex-parte interim order on 2.11.2015. The same is also quoted below for ready reference;
"Heard petitioner's counsel and counsel for R-1 and R-2.
Issue rule nisi.
Stay of the order dated 22.7.2013 at Annexure-L with the direction to the petitioner that he shall not put up any Order dated: 22.11.2016 in WP No.44508/2015 Mr.H.D.Ramesh Vs The Commissioner, BBMP and another 10/13 further construction on the property in question."
6. After the respondent-BBMP appeared before this Court and filed his statement of objections on the last occasion on 10.11.2016, the following order was passed by this Court;
"Learned counsel for the respondent - BBMP submits that the stay order is operating in this case since 01/11/2015 granted by this Court and thereafter the matter has not been heard and the petitioner has undertaken the construction without any sanction of plan by the BBMP.
Learned counsel for the petitioner submits that the senior counsel appearing in the present case is not available today and therefore, the matter may be adjourned for a short period.
Put up on 15-11-2016."
7. Today also when the matter was taken up, the learned counsel Smt.M.V.Thanuja appearing for the petitioner submitted that, the Senior Counsel Order dated: 22.11.2016 in WP No.44508/2015 Mr.H.D.Ramesh Vs The Commissioner, BBMP and another 11/13 Mr.M.Erappa Reddy is not available and therefore the matter be adjourned or passed over.
8. The said request was turned down in view of the aforesaid history of the case. The learned counsel for the petitioner was also asked if there is any sanction in favour of the petitioner for the said construction or not.
However, she was unable to point out any such sanction in favour of the present petitioner.
9. The learned counsel for the respondent-BBMP Mr.Sreenidhi on the other hand submitted that, in view of there being no sanction, the entire construction raised by the petitioner is without any approval of the competent authorities and the impugned orders under Sections 321, 323(3) of the KMC Act as well as the order passed by the learned Tribunal deserves to be upheld by this Court.
10. On consideration of the material placed before the Court and the arguments of learned counsel for the Order dated: 22.11.2016 in WP No.44508/2015 Mr.H.D.Ramesh Vs The Commissioner, BBMP and another 12/13 respondents, this Court is of the considered opinion that there is no merit in the present writ petition and the same deserves to be dismissed with costs.
11. The petitioner seems to be going ahead with the construction of the building in question without any sanction or approval of the plan whatsoever by any authority of the public bodies like BBMP. The rule of law does not seem to be applicable to him in his opinion and he has considered himself as above law and beyond the reach of the law in the present case. Such litigants and persons deserves to be dealt with strongly by the Courts of law so that this kind of wanton recklessness and lawlessness does not prevail.
12. Having perused the impugned orders as quoted above, this Court is of the considered opinion that there is absolutely no reason, while the impugned orders of demolition of the property in question do not deserves to be carried out. A due process of law as already taken place in the present case and with no Order dated: 22.11.2016 in WP No.44508/2015 Mr.H.D.Ramesh Vs The Commissioner, BBMP and another 13/13 sustainable objection ever raised by the petitioner against the impugned orders, there is absolutely no reason for putting an end to the law to taking its course.
13. The writ petition is therefore dismissed with costs of Rs.50,000/- to be paid by the petitioner to the respondent-BBMP and the respondent-BBMP is directed to carry out the orders passed by its competent authorities by demolishing the said property in question within a period of three months from today and file compliance report before this Court within next one month thereafter.
Sd/-
JUDGE AP*